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Mr Justice Constable has refused a freeholder’s application for reverse summary judgment on a claim that its termination of a Building Safety Act remediation agreement was unlawful. The judgment is a useful corrective to the assumption that the statutory backdrop of a remediation order makes delay easier to characterise as repudiatory. It does not.The disputeCentrillion Point in Croydon was converted from offices into flats by Durkan Estates Ltd (“Durkan”) in the late 2000s. Wallace Estates Ltd (“Wallace”) acquired the freehold in 2014. In January 2024 the First-tier Tribunal made a remediation order under s.123 of the Building Safety Act 2022 (“BSA”) requiring Wallace to remedy relevant defects by 31 May 2025.Durkan — an entity against which Wallace could have sought a remediation contribution order under s.124 — agreed instead to carry out the works at its own cost. The resulting Agreement, dated 1 July 2024, set a completion date of 19 September 2025 “or such other date as is agreed as part of the Plans and Specifications”. That date was already later than the deadline in the remediation order, a point which came to matter.By June 2025 no Gateway 2 application had been made to…

The underlying dispute related to an abandoned hotel development project. The claimant sought in excess of £180 million against the defendant in deceit. 

Samuel Townend KC appeared for the successful Claimant in a Part 8 trial concerning whether an engineering consultancy agreement made adequate provision for the final date for payment as required by s.110(1)(b) of the Housing Grants, Construction and Regeneration Act 1996 and, if not, paragraph 8 of Part II of the Scheme for Construction Contracts was to apply.  In those circumstances two pay less notices served by the employer were out of time and the notified sums had to be paid.The trial additionally concerned the Defendant employer’s argument that there was a statutorily compliant estoppel by convention, the existence of which case meant that the matter was not appropriate for Part 8 and that full Part 7 case management to trial was required.  In the alternative, that a stay of enforcement should apply given the Claimant’s financial position.Eyre J. decided in favour of the Claimant in all respects.You can read the full judgment here.